HOW TO GET BAIL IN DRUG RELATED CASES

HOW TO GET BAIL FOR DRUG-RELATED CASES IN INDIA ?

BACHALI SAMPATH KUMAR, JUSTICE KUMARAYYA COLLEGE OF LAW

INTRODUCTION:

Drug-related offences in India are governed by the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), one of the most stringent laws in the country. Under this Act, offences related to the production, possession, sale, purchase, transportation, and use of banned substances are criminalized. Given the serious nature of these offences, getting bail in drug-related cases is challenging but not impossible.

UNDERSTANDING DRUG OFFENCES UNDER NDPS ACT:

Before exploring how to get bail, it is important to understand the types of offences under the NDPS Act, as bail eligibility depends on the severity of the offence.

CATEGORIES OF OFFENCES:

The NDPS Act classifies offences based on the quantity of the drug involved:

1. Small Quantity – Possession of a quantity less than the limit specified under the NDPS Act. Example: 5 grams of heroin.

2. More than Small but Less than Commercial Quantity – Intermediate quantity.

3. Commercial Quantity – Quantity equal to or more than the threshold. Example: 250 grams of heroin.

The punishment increases with the quantity. For small quantities, the sentence may be up to 1 year imprisonment or fine, whereas for commercial quantities, punishment may go up to 20 years imprisonment with a minimum of 10 years.

Bail under the NDPS Act: General Overview:

In Indian criminal law, the Code of Criminal Procedure (CrPC) governs the grant of bail. However, the NDPS Act overrides some provisions of the CrPC by imposing stricter bail conditions.

• Section 37 of the NDPS Act: This is the key provision governing bail in serious NDPS cases.

• Section 37(1)(b) : It states that in cases involving commercial quantities or certain serious offences: Bail shall not be granted unless the Public Prosecutor has been given an opportunity to oppose the bail, And the court is satisfied that:

• There are reasonable grounds to believe that the accused is not guilty, and The accused is not likely to commit any offence while on bail. This makes the bail process highly restrictive, especially for commercial quantity cases.

TYPES OF BAIL IN DRUG CASE:

There are mainly three types of bail that an accused can seek under the Indian legal system:

1. Regular Bail (Section 437/439 CrPC): This is for an accused who is already in custody. In NDPS cases, if the accused is arrested, they must apply for regular bail under:

• Section 437 of CrPC (before Magistrate), or

• Section 439 of CrPC (before Sessions Court or High Court).

2. Anticipatory Bail (Section 438 CrPC): This is bail before arrest, applicable if a person fears arrest in a drug case. However, in NDPS cases, courts are extremely cautious in granting anticipatory bail, especially when commercial quantities are involved.

3. Interim Bail: Temporary bail granted until the final decision on the regular or anticipatory bail application. Step-by-Step Guide: How to Get Bail in Drug Cases Step 1: Engage a Criminal Lawyer Engage a lawyer experienced in NDPS matters. The lawyer will analyze the FIR, chemical analysis reports, quantity involved, and evidence collected.

Step 2: Understand the Nature of Offence

• Is the quantity small, intermediate, or commercial

• Is there a prior conviction or repeat offence

• Is the alleged offence bailable or non-bailable

• For small quantity offences, bail is usually more lenient and can be granted by the Magistrate.

• For commercial quantity, Section 37 is invoked, making bail very difficult.

Step 3: Apply for Bail For Small Quantity:

• File for regular bail before the Magistrate under Section 437 CrPC.

• Court generally grants bail unless the accused has prior criminal records or other complicating factors. For Intermediate or Commercial Quantity:

• File for bail before the Sessions Court or High Court under Section 439 CrPC.

• Court will assess conditions under Section 37 before granting bail.

Step 4: Argue the Bail Application:

Your lawyer must convince the court that:

• There is no prima facie evidence of your involvement.

• The seizure or arrest was not as per procedure.

• You were falsely implicated or unaware of the drugs.

• There is no likelihood of tampering with evidence or influencing witnesses.

• You are not a flight risk.

Step 5: Conditions on Bail

If bail is granted, the court may impose conditions like:

• Surrender of passport

• Regular reporting to the police

• Prohibition on leaving jurisdiction

• Furnishing of sureties Grounds for Grant of Bail in NDPS Cases Here are some grounds and legal strategies used by lawyers to seek bail in NDPS cases:

1. Procedural Lapses:

• Non-compliance with Sections 42, 43, and 50 of the NDPS Act can help in getting bail.

• Section 42: Requirement for proper authorization and recording of reasons for search/seizure.

• Section 50: Right of the accused to be searched before a Magistrate or Gazetted officer.

2. Delayed Forensic Report:

• In cases where the FSL report (Forensic Science Laboratory report) is delayed, the court may

consider bail, especially if the accused has been in custody for a long time.

3. No Recovery from Accused:

• If the drugs were not found in possession of the accused and recovery was made from a third person or location, bail chances improve.

4. Medical or Humanitarian Grounds”

• Courts have granted bail in NDPS cases on medical grounds or if the accused is a woman, juvenile, or sole caretaker of children.

5. Undue Delay in Trial:

• If the trial is not progressing and the accused has been in custody for long, courts may grant

default bail under Section 167(2) CrPC.

IMPORTANT JUDGMENTS ON BAIL IN NDPS CASES:

Several landmark judgments have laid down principles for granting bail in NDPS offences:

1. Toofan Singh v. State of Tamil Nadu (2020): Held that statements given to police officers under Section 67 of NDPS Act are not admissible as confessions.

2. Union of India v. Shiv Shanker Kesari (2007):

Reiterated that Section 37 NDPS Act is a statutory bar on grant of bail for serious offences unless both conditions are fulfilled.

3. Supreme Court Guidelines in Satender Kumar Antil v. CBI (2022):

Emphasized the presumption of innocence and directed lower courts to consider bail more liberally, especially where investigation is complete.

SPECIAL CASES: FOREIGN NATIONALS & REPEAT OFFENDERS Foreign Nationals:

• Courts often consider foreign nationals as flight risks.

• Bail may be subject to stricter conditions including deportation proceedings after trial. Repeat Offenders:

• Second-time NDPS offenders face stricter scrutiny.

• Bail becomes very difficult unless exceptional circumstances are shown. Role of Narcotics Control Bureau (NCB): In high-profile drug cases, the NCB is the investigating agency. It files the charge sheet and opposes bail applications vigorously. An experienced lawyer must be prepared to counter NCB's contentions with strong legal arguments and evidence.

CHALLENGES IN GETTING BAIL:

• Stringent bail provisions under Section 37

• Presumption of guilt for possession of commercial quantity

• Burden on accused to prove innocence at bail stage

• Slow judicial process

• Aggressive opposition by prosecution

CONCLUSION:

While the NDPS Act imposes strict conditions on granting bail, especially in cases involving commercial quantities, bail is not entirely out of reach. Courts have shown a willingness to grant bail in deserving cases where procedural lapses exist, recovery is doubtful, or where prolonged custody without trial violates personal liberty. To maximise the chances of securing bail, the accused must:

• Engage a skilled criminal lawyer,

• Carefully analyze the quantity and nature of offence,

• Challenge the prosecution's evidence and procedures,

• Demonstrate no threat to society or evidence,

• And argue for liberty within the framework of the Constitution and the NDPS Act.

• Bail is a rule, jail is an exception – even in NDPS cases, this principle, though applied cautiously, still holds value in ensuring justice and fairness.